Petition — Isaacs v. United States

Supreme Court brief1983

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83-275

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBEF TERM, 1983

NO.

JAMES L. ISAACS,

Petitioner,

vs.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

Office - Supreme Cou

. tu

FILE GES

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROMMEL BONDOC, ESQ.

899 Ellis Street

San Francisco,

(415) 441-4044

CA 94109

Attorney for Petitioner

JAMES L.

ISAACS

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..... .

PETITION FOR WRIT OF CERTIORARI.

QUESTIONS PRESENTED. ......

OPINIONS BELOW ....... .

GROUNDS FOR JURISDICTION... .

CONSTITUITIONAL PROVISIONS

BVOuVEws c+ 0 0 “se = 6 8 ce es

STATEMENT OF THE CASE. .... .

REASONS RELIED ON FOR THE

ALLOWANCE OF THE WRIT .....

CONCLUSION .. «1. + © © ©» © © «© «

APPENDIX A

APPENDIX B

APPENDIX C

TABLE OF AUTHORITIES

Cases

Coolidge v. New Hampshire

403 U.S. 433 (1971)

Texas v. Brown

U.S. , 103 S.Ct.

1535, 75 L.Ed.2d 502

(April 19, 1983).

United States v. Diachiarinte

445 F.2d 126 (7th Cir. 1971).

Statute

United States Constitution,

ON SS ES > Soe ee See

Other

Webster's New International

Dictionary, 2d ed. (1936)

Page

IN THE SUPREME COURT

OF THE

UNITED STATES

OCTOBER TERM, 1983

NO.

JAMES L. ISAACS,

Petitioner,

vs.

THE UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner JAMES L. ISAACS prays that

a Writ of Certiorari issue to review the

judgment of the United States Court of Appeals

for the Ninth Circuit entered June 20, 1983,

affirming his convictions under 21 U.S.C.

§841(a) (1), and that on hearing the judgments

of convictions be reversed.

QUESTION PRESENTED

Where a search warrant confers authority

upon an agent to search for foreign items

(rent receipts and counterfeit currency)

which might be expected to be found hidden

in a ledger, notebook, or similar item, may

he or she "briefly peruse” writing contained

therein?

OPINIONS BELOW

The amended opinion of the Court of

Appeals, which is scheduled for publication

but not yet published, dated June 20, 1983,

is Appendix "A" to this Petition. The

pertinent District Court orders were by

minute order and unpublished.

GROUNDS FOR JURISDICTION

The amended opinion of the Court of

Appeals was filed on June 20, 1983, and

Petitioner's Petition for Rehearing was

denied on the same day. Jurisdiction is

conferred on this Honorable Court by

28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The United States Constitution,

Amendment IV, provides:

"The right of the people to be

secure in their persons, houses,

papers, and effects, against unrea-

sonable searches and seizures shall

not be violated, and no warrants

shall issue, but upon probable cause,

supported by oath or affirmation,

and particularly describing the

place to be searched, and the

persons or things to be seized."

STATEMENT OF THE CASE

On April 7, 1982, an indictment was

filed in the Northerm District of California

against JAMES LOUIS ISAACS in six counts.

The Counts now pertinent, III and V, charged

possession with intent to distribute, res-

pectively, 718 grams of methaqualone and

41.8 grams of cocaine, in violation of

21 U.S.C. §841(a) (1). (Docket, line 7.)

Petitioner filed a motion to suppress

Six journals seized from his apartment on

March 23, 1982. The motion was heard before

the Honorable Eugene F. Lynch on May 21,

1982. The affidavit in support of search

warrant states that’ ISAACS paid rent two

different months partially with counterfeit

one hundred dollar bills. The search

warrant names "counterfeit $100 Federal

Reserve Notes and rent receipts," nothing

else. Petitioner's position was that the

journals were not named in the warrant and

not properly within its scope. (Docket,

line 13.)

At the hearing, held before the

Honorable Eugene F. Lynch on May 21, 1982,

the prosecutor explained his position that

the agent,in looking through the journals

for counterfeit currency and rent receipts,

noticed something of evidentiary value and

was entitled to seize it. The hearing

proceeded with the issue framed in this

fashion. (RT 4:10-9:7.)

Special Service Agent Richard L. Adams

testified that while in the apartment he

noticed narcotics and narcotic-related

materials in plain sight, while looking for

the items named in the warrant. (RT 9:19-

11:10.)

After he found the drugs, he noticed

a safe in the same closet. He obtained the

combination from ISAACS and looked inside.

(RT 11:11-12:10; 13:2-8; 15:21-16:6; 16:12-

19.) He did not see any counterfeit or rent

receipts, but he did find six journals,

bound together with a rubber band, at an

angle in the safe with their backs upward.

(RT 13:9-17.)

He looked through the journals. Twice

he testified that he was "primarily" looking

for counterfeit currency (RT 13:18-24;

17:1-18:4) and at another point that he made

no attempt "per se" to read the ledsers as

he was going through them. (RT 18:10-24.)

In going through the journals he noticed

information "that could possibly relate to

maybe possession with intent to distribute

narcotis," such as names of individuals

("B. Pipe" for example), an amount (such as

one ounce), and dollar amounts. (RT 13:25-

15:20.)

As he was looking through the journals,

if he came to what "could be" a narcotics

transact on, he stopped and looked at those,

When asked how he knew they were narcotics

transactions, he said its relatively easy

to see, when you turn a page and see four-

teen grams and a dollar amount, that "could

possibly relate” to narcotics transactions.

(RT 18:25-19:10.)

Exhibit 1-A at the hearing (Exhibit 9

at the first trial and Exhibit 6 at the

second trial) is a rather thin journal.

At some point he stopped and took a look at

the words on the pages. On the third or

fourth page, the first observation he made

was the "14 gr" and the "70/", indicating

to him fourteen grams and $70. (RT 20:14-

22:21.)

When asked to demonstrate how he did

this, he said he leafed through the pages

and when he came to the pages that have

writing he stopped and looked at the writing.

He examined the writing and notice the "14

gr". (RT 23:24-25:8.) The Court interprets

the testimony that when the agent came sudden-

ly upon writing that said fourteen grams he

stopped to look. (RT 26:2-6.)

The Court himself thumbed through

Exhibit 1-A. He found that mechanically,

the way the thumb works, you begin to slow

down towards the end. What jumped out at

him was two ounces--where he happened to be

when he slowed down. (RT 27:6-29:12.) The

difference, we submit, is obvious. The

agent stopped to read where the writing

began and the Court did not.

The agent did not notice anything

incriminating in the other five journals on

the scene. However, since they were all

bound together, he took them with him to

look at more thoroughly back at the office.

(RT 17:1-18:4; 23:16-23.)

The Court denied the motion as to

Exhibit 1-A and granted it as to the other

five journals. Please see the transcript

of the findings which is Appendix "B" to

this Petition.

The case proceeded to trial before

Judge Lynch. On June 4, 1982, a mistrial

was declared, due to jury deadlock.

The case was reassigned to the

Honorable Lloyd H. Burke on July 12, 1982.

(Docket, line 35.) Eventually, both

suppressed and unsuppressed journals were

admitted.

After conviction by jury, Petitioner

was sentenced to six years imprisonment

and five years special parole concurrent

and consecutive $2,500 fines. (Docket,

line 50; please see the Judgment which is

Appendix "C" to this Petition.)

A timely appeal was perfected to

the Court of Appeals. At page 2114 of the

Opinion the Court states that the Trial

Court " .. . found that the agents perused

the ledger is no more thorough a manner

than necessary to determine whether it

contained the items which were the object

of the search warrant." Apparently finding

this statement difficult conscientiously

to reconcile with the proceedings in the

Trial Court, the Court goes on to the

proposition this Petition addresses:

" . . . [W]hen conditions

justify an agent in examining a

ledger, notebook, or similar item,

he or she may briefly peruse

writing contained therein...

the justification .. . may arise

from the authority conferred by

a warrant to search for certain

items which might reasonably be

expected to be found within such

a book ...." (Opinion, p. 2116.)

REASONS RELIED ON FOR THE

ALLOWANCE OF THE WRIT

The Court of Appeals holds that

agents can "briefly peruse" writings encoun-

tered in a warrant-authorized search for

something else. The term "briefly peruse"

is peculiar, since "peruse" generally means

"to read carefully or critically for

-10-

revision or study of." (Webster's New

International Dictionary, 2a ed. (1936) .)

From the whole record and opinion, however,

it is clear that "briefly peruse” means

"read". Thus, the terminology is not

troublesome as the doctrine it encapsulates:

The most private of items is beyond Fourth

Amendment protection.

In Texas v. Brown, U.S. ;

103 S.Ct. 1535, 75 L.Ed.2d 502 (April 19,

1983), the Court advanced Fourth Amendment

jurisprudence by separately focusing on the

interests implicated by searched versus

seizures. The plurality in Brown took the

approach that where an agent legitimately

has access to an object, thereafter only

possessory and no privacy interests are

involved. The facts of the instant case

show that this approach is not always

correct, i.e., when the step is taken from

access to a writing to reading it. As the

Court observed in United States v.

ah Le

Diachiarinte, 445 F.2d 126, 130 n.4 (7th

Cir., 1971), a much greater invasion of

privacy results from an agent's reading

personal papers than from rummaging through

personal property. The approach of the

concurrence in the judgment of Justice

Stevens, at 103 S.Ct. 1545, 1546, better

accommodates this problem:

"An object may be considered

to be 'in plain view' if it can be

seized without compromising any

interest in privacy."

Indeed, something akin to this may have

been behind the original formulation of

the "immediately apparent" requirement in

the plurality opinion in Coolidge v. New

Hampshire, 403 U.S. 443, 446 (1971):

"Of course, the extension of

the original justification is

legitimate only where it is imme-

eite

diately apparent to the police

that they have evidence before them;

the 'plain view' doctrine may not

be used to extend a general explor-

atory search from one object to

another until something incriminating

at last emerges."

It is respectfully +: abmitted that the

question raised by this Petition must be

resolved to make the plain view doctrine

cohesive and sensible, and to protect the

Fourth Amendment rights of the citizenry.

CONCLUSION

For the foregoing reasons, it is

respectfully submitted that the Writ of

Certiorari should issue.

Respectfully submitted,

ROMMEL BONDOC

Attorney for Petitioner

JAMES L. ISAACS

-13-

APPENDIX A

AMENDED OPINION

UNITED STATES V. ISSACS

No. 82-1534

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 15, 1983.

Decided May 9, 1983.

As Amended On Denial of Rehearing

June 29, 1983.

Defendant was convicted in the

United States District Curt for the

Northern District of California, Llovd H.

Burke, J., of possession of methaqualone

with intent to distribute and he apvealed.

The Court of Appeals, Farris, Circuit

Judge, held that: (1) journal containing

notations that avoneared to relate to drug

transactions was properly seized (2) de-

fendant had standing to challenge seizure;

(3) other journals were orcverly suppressed;

(4) suppressed journals were properly used

for impeachment purposes; and (5) dismissal

of charges of using a gun to commit crime of

possession did not preclude introduction of

the guns as evidence of drug trafficking.

Affirmed.

Appeal from the United States District

Court for the Northern District of California.

Before HUG and FARRIS, Circuit Judges,

and GADBOIS,* District Judge.

FARRIS, Circuit Judge:

A jury convicted James Louis Issacs

on two counts of possession with intent to

distribute methaqualone and cocaine in

violation of 21 U.S.C. §84l(a) (1). He now

challenges: 1) the denial in voart of his

pretrial motion to suppress certain journals

seized during a search of his apartment

pursuant to a warrant; 2) the trial court's

* The Honorable Richard A. Gadbois, United

States District Judge for the Central

District of California, sitting by

designation.

ruling which permitted the government to

impeach his testimony with illegally seized

journals; and 3) the trial court's denial

of his motion to suppress a gun and

related items seized during the same

search.

FACTS

Agents of the Secret Service

obtained a warrant to search Issacs's

residence for rent receipts and counterfeit

Federal Reserve notes. While searching

the apartment in Issacs's presence and

pursuant to the warrant, the agents

uncovered a gun, shoulder holster, and

ammunition. The agents also discovered

drug varaohernalia and considerable quan-

tities of methaqualone and cocaine on a

shelf in the bedroom closet. There is no

dispute that the gun, drugs, and related

items were in plain view.

In the same closet the agents

noticed a safe, the combination to which

Issacs gave them. Upon opening the safe,

they found six journals bound together

with a rubber band. An agent testified

that he flipped through the journals in

order to ensure that they contained no

receipts or counterfeit notes. While

leafing through one journal, the agent

came across notations which avveared to

record drug transactions. Although he

noticed nothing similar in the remaining

journals at the time, he seized all six.

On April 7, 1982, a grand jury

indicted Issacs on six counts. The first

and second counts charged him with passing

counterfeit notes in violation of 18

U.S.C. §472. The third and fifth counts

charged him with vossession with intent to

distribute methaqualone and cocaine in

violation of 21 U.S.C. §841(a) (1). The

fourth and sixth counts charged him with

use of a gun to commit the crimes charged

in the third and fifth counts in violation

of 18 U.S.C. §924(c) (1).

After severance of the first two

counts, Issacs moved to suppress the

journals. The court denied the motion as

to the first journal and granted it as to

those remaining, reasoning that the agents

were not entitled to seize objects when

initial inspection revealed no incriminating

features. During the course of the first

trial, which ended in mistrial, the judge

granted a motion for acauittal on the gun

counts. At the second trial, a different

judge admitted the suppressed journals for

purposes of impeachment. The court also

admitted evidence of vossession of firearms.

The jury at the second trial found Issacs

guilty of both counts of possession with

intent to distribute. On the covernment's

motion the court subsecuently dismissed the

counterfeit note counts.

A. SEIZURE OF THE JOURNALS

Issacs argues that the evidence in

the unsuppressed journal was beyond plain

view because the agent needed to read its

contents to uncover the incriminating

notations. The government challenges

Issacs' "standing" to object to the search,

pointing to his disclaimer of ownershin or

possession of the journals at trial, and

contends that in any case the journal was

in plain view.

{1} In Rakas v. Illinois, 439 U.S.

128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978),

the Supreme Court "abandoned a separate

inguiry into a defendant's 'standing' to

contest an allegedly illegal search in

favor of an inquiry that focused directly

On the substance of the defendant's claim

that he or she possessed a ‘legitimate

expectation of privacy' in the area

searched.” Rawlings v. Kentucky, 448 U.S.

98, 104, 190 S.Ct. 2556, 2561, 65 L.Ed.2d

633 (1980) (citing Katz v. United States,

389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576

(1967)); accord United States v. Salvucci,

448 U.S. 83, 87 n. 4, 100 S.Ct. 2547, 2551

n. 4, 65 L.Ed.2d 619 (1980). The conver-

sion of standing from a ovreliminaryv to a

substantive question makes no practical

difference, however. Rakas, 439 U.S. at

139, 99 S.Ct. at 428. Issacs must still

demonstrate (1) that the agents found the

journal in a place in which Issacs had a

legitimate expectation of privacy and

(2) that the search exceeded fourth amend-

ment constraints. Rawlings, 448 U.S. at

194, 100 S.Ct. at 2561.

l. Legitimate expectation of

privacy.

At first glance the government's

contention that Issacs had no legitimate

expectation of privacy in a locked safe

hidden in a closet in his own apartment

appears ludicrous. The government argues,

however, that Issacs's disclaimer at trial

of ownership or awareness of the journals

negates any expectation of vorivacy. The

government reasons that "it is logically

impossible to have an expectation of

privacy in items one does not know exist."

Appellee's Brief at 8.

Of course, it is also "logically

impossible" to deny knowledge or possession

for purposes of the suppression motion but

to take the opposite position for purposes

of proving guilt at trial. Until recently,

the rule of automatic standing established

in Jones v. United States, 362 U.S. 257,

80 S.Ct. 725, 4 L.Ed.2d 697 (1960), which

was expressly intended to deny the govern-

ment "the advantage of contradictory

positions as a basis for conviction" in

mossession cases, would have precluded such

inconsistency. Id. at 263, 80 S.Ct. at

732. However, the ‘ourt abandoned tnat

rule in Salvucci. The Court there recog-

nized that "a prosecutor may simultaneously

maintain that a defendant criminally

possessed the seized good, but was not

subject to a Fourth Amendment deprivation,

without legal contradiction." 448 U.S. at

90, 100 S.Ct. at 2552.

[2] Nevertheless, the government's

argument fails here. Its position assumes

that Salvucci permits the prosecution to

charge possession but dispute expectation

of privacy regardless of the underlying

facts. The rationale of Salvucci does not

support so unbounded a reading. The Court

there refused anv longer to recognize a

necessary connection between possession

and exvectation of orivacy which "“afford(ed]

a windfall to defendants whose Fourth

Amendment rights [had] not been violated.”

Id, at 95, 100 S.Ct. at 2554 (emphasis in

Original). The Court simply rejected

conferral of automatic standing; it did

not condone prosecutorial self-contradic-

i le does not permit the govern-

ment to argue possession but deny expecta-

tion of privacy where the circumstances of

the case make such positions necessarily

inconsistent.

[3] The government may properly

contend that a defendant owned drugs which,

moments before the challenged search,

he had placed in his girlfriend's purse,

in which he had no legitimate exvectation

of privacy. See Rawlings, 448 U.S. at

104-06, 100 S.Ct. at 2561-62. It may argue

that checks found in the apartment of another

in which a defendant had no legitimate

expectation of nrivacy belonged to the

defendant. See Salvucci, 448 U.S. at 85,

95, 100 S.Ct. at 2549, 2554. It mav

properly seek to introduce evidence seized

from a room with which a defendant had no

connection beyond mere presence and thus

-10-

no legitimate expectation of privacy. See

United States v. Irizarry, 673 F.2d 554,

556 (lst Cir. 1982). And it may argue

that a defendant once vossessed an item

but, by abandoning it, subsequently re-

nounced any expectation of orivacy in it.

See United States v. Veatch, 674 F.2d 1217,

1220-22 (9th Cir. 1981); United States v.

Anderson, 663 F.2d 934, 937-39 (9th Cir.

1981).

Here, however, the government wants

it both ways: It seeks to rely on Issacs's

disavowal of ownership to defeat his right

to contest the lawfulness of the search

at the same time it introduces the journal

as evidence of his guilt. Yet the govern-

ment cannot and does not dispute that

Issacs had a legitimate expectation of

privacy in the safe itslef, and there can

be no question of abandonment of items

found in the putative abandoner's personal

safe. Issacs's denial of ownership should

sill@

not defeat his legitimate expectation of

privacy in the space invaded and thus his

right to contest the lawfulness of the

search when the government at trial calls

upon the jury to reject that denial. See

United States v. Ross, 655 F.2d 1159,

1165 (D.C.Cir. 1981) (en banc) (rejecting

"Government's position that [defendant's]

trial tactic, denying knowledge of the

(contraband-filled] bag, strips him of

Fourth Amendment protection"), rev'd on

other grounds, 456 U.S. 798, 102 S.Ct.

2157, 72 L.Ed.2d 572 (1982).

Moreover, the distinction the govern-

ment seeks to draw between an expectation

of privacy in the space invaded and the

items seized is untenable. The cases upon

which it relies all involve seizures from

places arguably outside the defendant's

control. See, e.g., Salvucci, 448 U.S.

at 85-66, 95, 100 S.Ct. at 2549-50, 2554-

55. Rawlings, 448 U.S. at 100-06, 100

«12-

S.Ct. at 2559-62. The government's conces-

sion that Issacs had "a legitimate expecta-

tion of privacy in the invaded volace,"

Rakas, 439 U.S. at 143, 99 S.Ct. at 430,

precludes its contention that he had none

in the items found there.

{4} Issacs had a legitimate expec-

tation of privacy in the safe in which the

journals were found and thus may contest

the lawfulness of their seizure.

2. Plain view.

At the time of Issacs's suppression

hearing, the plurality opinion in Coolidge

v. New Hampshire, 493 U.S. 443, 91 S.Ct.

2022, 29 L.Ed.2d 564 (1971), governed the

reach of the plain view exception. There

Justice Stewart stated that officers inad-

vertently coming upon objects in plain view

during the course of a legal search may

seize them even though they are not speci-

fically mentioned in the warrant if it is

-13-

“immediately apparent to the police that

they have evidence before them." Id. 466,

91 S.Ct. at 2038. Issacs argues that this

plain view exception to the warrant re-

quirement cannot support the seizure of

the journal here because the officer

needed to read its contents in order to

appreciate their incriminatory nature.

(5] We disagree. Issacs cannot and

does not dispute that the agents could

rightfully examine the ledger in order to

ascertain whether notes or receipts were

hidden within it. See United States v.

Wright, 667 F.2d 793, 799 (9th Cir. 1982).

The trial court found that while leafing

through the ledger the officers noticed

notations that appeared to concern drug

transctions. It further found that the

agents had perused the ledger in no more

thorough a manner than necessary to deter-

mine whether it contained the items which

were the object of the search warrant.

-l14-

These findings are not clearly erroneous,

see United States v. Lee, 699 F.2d 466,

468 (9th Cir. 1982); United States v.

Wysong, 528 F.2d 345, 349 (9th Cir. 1976),

and support the district judge's conclusion

that the "inadvertent" discovery of the

notations made it clear to the agents that

they had evidence before them. See

Coolidge, 403 U.S. at 469, 466, 91 S.Ct.

at 2040, 2038.

The Supreme Court's recent decision

in Texas v. Brown, G.8: s sea

S.Ct. 1535, 75 L.Ed.2d 502 (1983), does

not affect this result. There the Court

reconsidered the Coolidge plurality's

"immediately apparent" language and

substituted a probable cause standard.

See id. at » 03 S.Ce. at 1541663

(Rehnquist, J.) (plurality opinion);

id. at , 103 S.Ct. at 1545 (Stevens,

J., concurring in the judgment); see also

id. at , 103 S.Ct. at 1544 (Powell,

«1 5~«

J., concurring in the judgment). Justice

Rehnquist's plurality opinion also question-

ed the element of inadvertence. See id.

at », 103 S.Ct. at 1543; see also id.

at £, 103 $.Ct. at 1544 (White, J.,

concurring). Since the district judge's

factual findings support his conclusions

that the discovery was inadvertent and

that the incriminatory nature of the

notations was immediately apparent, thev

would necessarily support conclusions

founded on any lower thresholds for these

two requirements.

Issacs seeks support in United States

v. Wright, which involved superficially

Similar facts. There we held that the trial

court had erred by failing to suppress a

black ledger which contained notations

concerning drug transactions. Agents of

the Federal Bureau of Alcohol, Tobacco and

Firearms had executed a federal search

warrant which authorized the seizure of a

California driver's license. During the

course of the search, Agent Kelly came

upon a small black ledger. He searched

through the ledge without finding the

license which was the subject of the

search. Without initially having noticed

anything particularly incriminating about

the ledger, he brought it to Agent Frantz-

man of the Drug Enforcement Agency in order

to allow him to examine it more closely.

Frantzman determined that the ledger

recorded drug transactions.

The critical difference between the

search invalidated in Wright and the

search that we consider here is that in

Wright the initial, justified nerusal of

the ledger in search of the driver's

license revealed nothing incriminating.

We carefully observed:

Kelly's testimony did not include

any facts that would give rise to

a reasonable susnicion that the

oi Je

ledger was evidence of a crime.

Consequently, Kelly exceeded his

authority to search for the license

when he took the ledger to Frantz-

man so that he could inspect its

contents. Similarly, Frantzman

had no right to read the ledger's

entries. The incriminating nature

of the ledger was not "immediately

apparent" to Frantzman but was

revealed only after he carefully

examined its contents.

667 F.2d at 799. Since Kelly, who conducted

the initial, justifiable search, had no

concrete reason to susnect that the ledger

contained incriminating evidence, the

search conducted by Frantzman passed be-

yond the bounds of conduct authorized by

the plain view doctrine and into the realm

of exploratory rummaging against which

the warrant requirement ee een

by contrast, the trial court specifically

found that the agents' observation of the

drug-related notations was inadvertent

and that their incrimating nature was

manifest.

United States v. Hillyard, 677 F.2d

1336 (9th Cir. 1982); Wysong, 528 F.2d at

349; and United States v. Damitz, 495 F.2d

50 (9th Cir. 1974), support our conclusion.

In Hillyard we validated the warrantless

seizure of a log book and notebook found in

plain view in the cab of a truck nown to

be stolen. The books' location gave rise

to a reasonable suspicion that they contained

evidence. Therefore, it was lawful for the

agents to peruse briefly their contents.

This examination revealed entries obviously

relevant to the criminal scheme under

imvestigation. In Wysong we held lawful

the seizure of a ledger book found in a

Suitcase pursuant to a warrant authorizing

a search for cocaine and premarked currency.

Since agents had previously discovered in

defendant's motel room a page ripped from

a ledger book and covered with figures

relating to drug transactions, the agents

executing the search had immediate cause

to suspect that the ledger, in plain view

upon opening the suitcase, was connected

with illegal activity. In Damitz we upheld

the warrantless seizure of a notebook

containing evidence of drug sales which

agents found in olain view next to drug

paraphernalia during a valid search for

drugs and drug paraphernalia. The loca-

tion of the notebook gave concrete cause

for suspicion.

These cases make clear that when

conditions justify an agent in examining

a ledger, notebook, journal, or similar

item, he or she may briefly peruse writing

contained therein. See also United States

v. Chesher, 678 F.2d 1353, 1356-57 n.2

(9th Cir. 1982); United States v. Ochs,

595 F.2d 1247, 1256-59 & n. 8 (2d Cir.),

cert. denied, 444 U.S. 955, 100 S.Ct.

435, 62 L.Ed.2d 328 (1979). The’ justi-

fication may arise from "a ‘reasonable

suspicion' to believe that the discovered

item is evidence," Wright, 667 F.2d at

798, as in Hillvard, Wysong, and Damitz;

Or it may arise from the authority con-

ferred by a warrant to search for certain

items which might reasonably be expected

to be found within such a book, as here.

In either case, the plain view doctrine

would permit brief perusal of the

book's contents and, consequently, its

seizure if such perusal gives the examining

agent probable cause to believe that the

book constitutes evidence. See Hillyard,

677 F.2d at 1342.

We do not mean to suggest that

agents entitled to examine a book or

Similar item may minutely scrutinize its

contents, especially when personal,

«2i«

nonbusiness papers are involved. See

Crouch v. United States, 545 U.S. 952, 955-

56, 102 S.Ct. 491, 492-93, 70 L.Ed.2d 259

(1981) (White, J., dissenting from denial

of certiorari). But this case does not

require us to explore the limits to brief

perusal. The trial court's factual

findings establish that no more than a

glance was necessary to ascertain the

incriminating nature of the notations.

[6] The trial court properly

admitted the journal in which agents

observed the incrimating notations.

However, since the preliminary examination

uncovered nothing incriminating about

the remaining journals, it follows that

the agents had no right to seize them in

order that they might more closely examine

them later. The trial court correctly

suppressed them.

B. USE OF THE SUPPRESSED JOURNALS

TO IMPEACH ISSACS

Issacs argues that the trial court

erred by allowing the prosecution to use

the illegally seized journals to impeach

his testimony. He relies on United States

v. Havens, 446 U.S. 620, 100 §.Ct. 1912,

64 L.Ed.2d 559 (1980), in which the Court

held that

a defendant's statements made in

response to proper cross-examination

reasonably suggested by the defen-

dant's direct examination are

subject to otherwise proper impeach-

ment by the government, albeit by

evidence that has been illegally

obtained and that is inadmissible

in the government's direct case,

Or otherwise, as substantive

evidence of guilt.

«2 3e

Id. at 627-28, 100 S.Ct. at 1916-17;

see United States v. Miller, 676 F.2d 359,

364 (9th Cir. 1982), cert. denied,

U.S. , 103 §.Ct. 126, 74 L.Bd.2d 109

(1982). On direct examination in the

second trial, Issacs denied possession of

the drugs found in his apartment and

authorship of the notations in the unsuv-

pressed journal; denied having seen any

of the legally seized evidence, including

the unsuppressed journal, before trial; and

Genied ever selling any drugs. The govern-

ment sought to introduce the suppressed

journals in order to imneach these state-

ments.

(7, 8) To the extent that the

evidence contradicted statements made on

direct, it was admissible, though for

impeachment purposes only. Havens, 446

U.S. at 624, 100 S.Ct. at 1915; Walder v.

United States, 347 U.S. 62, 74 S.Ct. 354,

98 L.Ed. 503 (1954). However, the prosecu-

tor went further, eliciting on cross-

examination denials by Issacs that he knew

persons of the names mentioned in the

unsuppressed journal, then seeking to

impeach those statements by introducing

the suppressed journals which contained

those names. Under Havens the court should

have allowed this impeachment only if the

line of questions eliciting the denials

were "proper cross-examination reasonably

suggested by the defendant's direct examin-

ation.” 446 U.S. at 627, 100 S.Ct. at

1916. Given the sweeving range of Issacs's

denials on direct, the court could pronerly

have concluded that the Havens test had

been met.

C. DOUBLE JEOPARDY

(9, 10] Issacs contends that the

government subjected him to double jeopardy

by introducing firearms found in his

residence as evidence of drug trafficking

despite his acquittal on two counts of using

a gun to commit the crimes of possession

with intent to distribute. The argument

has no merit. The trial judge has discre-

tion to admit evidence of firearms in drug

trafficking cases, United States v. Mirovan,

577 F.2d 489, 494-95 (9th Cir.), cert.

denied sub nom., 439 U.S. 896, 99 S.Ct.

258, 58 L.Ed.2d 243 (1978); United States

v. Kearney, 560 F.2d 1358, 1369 (9th Cir.)

cert. denied, 434 U.S. 971, 98 S.ct. 522,

54 L.Ed.2d 460 (1977), and the dismissal

of the gun counts did not preclude

admission of evidence of the guns if

relevant for another purpose, United States

v. Hobson, 519 F.2d 765, 776 (9th Cir.),

cert. denied, 423 U.S. 931, 96 S.Ct.

283, 46 L.Ed.2d 261 (1975).

Affirmed.

Footnotes

1. The Salvucci court found that inter-

vening legal developments had eroded

the twin grounds of the Jones automatic

standing rule. The holding in Simmons v.

United States, 390 U.S. 377, 88 S.Ct. 967,

19 L.Ed.2d 1247 (1968), that "testimony

given by a defendant in supvort of a motion

to suppress cannot be admitted as evidence

of his guilt at trial" eliminated "the

risk that self-incrimination would attach

to the assertion of Fourth Amendment

rights." 448 U.S. at 88, 100 S.Ct. at

2551, Likewise, subsequent recognition

that "a prosecutor may, with legal

consistency and legitimacy, assert that a

defendant charged with possession of a

seized item did not have a privacy interest

violated in the course of the search and

seizure" obviated the need "to prevent

the ‘vice of prosecutorial sel‘f-contradic-

tion.'" Id. at 88-89, 100 S.Ct. at 2551

(quoting Brown v. United States, 41ll U.S.

223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d

208 (1973)).

2. However, it did suggest that the desire

to foreclose prosecutorial self-contra-

diction was a perinoheral ground of the

Jones decision. 448 U.S. at 90, 100 S.Ct.

at 2552. The language of Jones establishes

Otherwise. See 362 U.S. at 263-64,

80 S.Ct. at 732, see also United States v.

Agapito, 620 F.2d 324, 334 (2d Cir.),

cert. denied, 449 U.S. 834, 101 S.Ct. 107,

66 L.Ed.2d 40 (1980) (pre-Salvucci).

3. For the same reason, neither United

States v. Scios, 590 F.2d 956 (D.C.

Cir. 1978) (en banc), in which FBI agents

opened and read file folders, nor United

States v. Dichiarinte, 445 F.2d 126 (7th

Cir. 1971), in which agents read through

personal papers to search for hints of

criminal activity, provides Issacs support.

In both cases the court invalidated the

warrantless seizure because no concrete

grounds for suspicion prompted the

exploratory foray into private papers

which eventually produced incriminating

evidence.

QUESTION PRESENTED

Where a search warrant confers

authority upon an agent to search for

foreign items (rent receipts and counter-

feit currency) which might be expected to

be found hidden in a ledger, notebook, or